Section 377 verdict: The battle has only begun

The Supreme Court judgement that has now decriminalised sexual acts between consenting adults of the same sex is being widely welcomed across the nation. The words of the Justices written across 495 pages are likely to be quoted again and again for the clear and forthright manner in which they offer a broad, expansive, liberal and dynamic interpretation of the Constitution and a powerful reiteration of the guarantees of equality and fundamental rights to all Indians. In the process, the Justices have, of course, eliminated the discrimination imposed by the “oppressive colonial legislation”, which traces back to Thomas Babington Macaulay’s draft of 1837 that later become the Indian Penal Code in 1862.

But the Justices have also done much more. Coming at a time when fears of an overbearing executive have reached a new high, the judgements offer comfort and spell out the transformative power of the Constitution and its bedrock principles of equality, liberty and fraternity just when many might agree they needed to be reiterated. “Let us,” said Chief Justice Dipak Misra, “move from darkness to light, from bigotry to tolerance…to a more inclusive society.” Justice DY Chandrachud wrote: “Democratic as it is, our Constitution does not demand conformity. Nor does it contemplate the mainstreaming of culture. It nurtures dissent as the safety valve for societal conflict. Our ability to recognise others who are different is a sign of our own evolution. We miss the symbols of a compassionate and humane society only at our peril.”

The judgements have already made a mark across the globe. They celebrate and add vigour and vitality to the Constitution and stand testimony to what the noted constitutional expert SC Kashyap once said is the “resilience, dynamism and growth potential” of the Constitution. The importance of September 6, 2018, the date of the historic judgement, cannot be overstated. But beyond the celebrations, all those affected and not impacted by Section 377 would know that being protected by the power of the law is one thing and in practice ensuring that the letter and spirit of the law works for ordinary citizens to afford those protections is quite another. Discrimination, prejudice and humiliation are unlikely to disappear now that the highest court of the land has pronounced judgement. It will require massive effort to communicate the implications of the judgement and the change to vast sections of the establishment and people who have grown on and lived by standards which are very different.

While the Supreme Court has noted that social morality must give way to constitutional morality, it is the social arena in which the battle will necessarily play out. This is a social arena in which ‘straight’ couples are harassed and punished not only in the interior parts of India but equally in ‘cosmopolitan’ cities like Mumbai, where moral policing and the misuse by police of clauses on ‘indecent exposure’ has taken on ugly tones. The heteronormative framework regularly and repeatedly harasses heterosexual couples, at times seeking them out from quiet niches and corners (even hotel rooms) where they might look for seclusion and privacy. In such a social setting, how do members of the LGBTQ community fight discrimination and seek out their spaces and opportunities in day-to-day life?

The challenge is more so because the political parties are not on board. The government did not offer its view but left it to the wisdom of the Justices. It did not concede that 377 is invalid and at the same time did not offer a categorical point of view – ‘ambivalent’ as the Supreme Court put it. That ambivalence is embarrassingly visible in the BJP’s complete silence on the judgement so far and in the Congress taking to the social media to play out an earlier response by the Home Minister, Rajnath Singh, that homosexuality is ‘unnatural’. That extreme position has found supporters among groups like the Jamaat-E-Islami Hind, which says society “cannot accept crimes, vices and anarchy in the name of freedom”.

This tells us that the battle for rights and equality has only begun. There will be a political throwback. Long-standing prejudices will not fall just because the Honourable Justices have spoken loud and clear. That is the baseline fight. Going further, a logical extension of the judgement will be the demand for recognition of same sex marriages, something the current government is unlikely to concede. Tied to that are issues of inheritance, legal wills, division of family property, pensions for spouses, indeed the definition of the word “spouse”, where some of the current legal provisions will show new infirmities in the light of the judgement on Section 377. This, of course, is not touching on a whole new range of issues on principles of equal opportunity in government employment, including in the defence forces and in the top echelons of the administrative services.

The canvas is vast and addressing it means giving significance to that part of the judgement not publicised much in the rush of coverage. The government has been directed (“the Union of India shall take all measures”) to give wide publicity to the issue through public media and “initiate programs to reduce and finally eliminate the stigma associated with such persons”. There is urgent need to sensitise all officials and particularly police to the implications of this judgement.

The growth and march forward of a developing nation like India is often slow, sometimes a few steps back before moving forward again, as it has been in the fight to defang Section 377. But in the long run, India’s growth story and its future cannot be divorced from how the nation treats its people, particularly the minorities, the depressed classes, those discriminated against and those who do not have the support of the majority to voice their grievances. The nation cannot bow at the altar of majoritarianism. That is the deeper meaning and power and direction of the historic verdict. The nation must thank the LGBTQ community for putting up a long and difficult fight and in the process advancing rights for all citizens.

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